Code Section Group

Education Code - EDC

TITLE 3. POSTSECONDARY EDUCATION [66000 - 101060]

  ( Title 3 enacted by Stats. 1976, Ch. 1010. )

DIVISION 5. GENERAL PROVISIONS [66000 - 70110]

  ( Division 5 enacted by Stats. 1976, Ch. 1010. )

PART 40. DONAHOE HIGHER EDUCATION ACT [66000 - 67400]

  ( Part 40 enacted by Stats. 1976, Ch. 1010. )

CHAPTER 4.5. Equity in Higher Education Act [66250 - 66292.4]

  ( Heading of Chapter 4.5 amended by Stats. 2011, Ch. 637, Sec. 3. )

ARTICLE 4. Sex Equity in Education [66271.5 - 66281.7]
  ( Article 4 added by Stats. 1998, Ch. 914, Sec. 49. )

66271.5.
  

The provisions of this article are supplemental to any provision in the Constitution or laws of the United States or laws of the State of California, relating to discrimination.

(Added by Stats. 1998, Ch. 914, Sec. 49. Effective January 1, 1999.)

66271.6.
  

The Legislature finds and declares all of the following:

(a) On June 23, 1972, Congress enacted Title IX of the Education Amendments of 1972 to the 1964 Civil Rights Act. This landmark legislation provides that: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance.”

(b) While Title IX applies to all aspects of educational opportunities, it is well-known for opening the door to athletics for girls and women.

(c) In 1975, the United States Department of Health, Education and Welfare enacted regulations requiring that secondary and postsecondary schools comply with Title IX immediately. Those that could show real barriers to immediate compliance had just three years to meet the regulations, including equalizing their athletic programs.

(d) California state law has included several athletic equity provisions similar to those in Title IX since 1976. For example, the Sex Equity in Education Act provides, in subdivision (a) of Section 221.7, that: “It is the intent of the Legislature that opportunities for participation in athletics be provided equally to male and female pupils.” Similar provisions are expressly applicable to community colleges and the California State University.

(e) Enhancing athletic opportunities for young women and girls is vitally important because of the significant benefits athletic opportunities provide including greater academic success, better physical and psychological health, responsible social behaviors, and enhanced interpersonal skills. For some women and girls, the financial support made available through athletic scholarships can make it possible to attend college.

(f) Title IX has promoted significant advances for women and girls to participate in sports. While fewer than 32,000 women participated in college sports nationally prior to the enactment of Title IX, today approximately 163,000 women participate—a nearly five fold—or more than 400 percent increase. Athletic opportunities for girls at the high school level nationally have grown even more dramatically—from 294,000 in 1972 to 2,800,000 today—an 894 percent increase. California boasts the second highest number of high school girls participating in athletics nationwide—a total of 270,000 girls in California’s high schools now participate in interscholastic athletics.

(g) Men’s intercollegiate athletic participation has also increased, rising from approximately 220,000 in 1981–82 to approximately 232,000 in 1998–99. Between 1981–82 and 1998–99, football participation increased by 7,199; men’s participation in baseball, lacrosse, and soccer also increased during the same time period. High school boys’ participation rates have also increased—jumping 8.2 percent in the last three years in California.

(h) The dramatic increases in participation rates at both the high school and college levels since Title IX was passed show that when doors are opened to women and girls, they will rush through. Courts have repeatedly recognized that it is unfounded and unlawful to claim that women and girls are less interested in sports than men and boys. As one court stated, “interest and ability rarely develop in a vacuum; they evolve as a function of opportunity and experience . . .” (Cohen v. Brown University (1st Cir. 1996) 101 F.3d 155, 179). Accordingly, courts have repeatedly rejected arguments that the assessed interest level of girls in athletics should determine Title IX compliance (Neal v. California State University (9th Cir. 1999) 198 F.3d. 763, 767). Thus, interest surveys cannot accurately determine whether an educational institution has effectively accommodated the interests and abilities of female students.

(i) The United States Department of Education uses a three-part test adopted in 1979 to determine whether an educational institution has met the key Title IX requirement that a school “effectively accommodate the interests and abilities of members of both sexes” when it comes to athletic participation. All three prongs of the test have been used successfully by schools to comply with Title IX, and have given schools flexibility in structuring their athletic programs. The three-part test neither imposes quotas or requires preferential treatment, nor requires mirror-image men’s and women’s sports programs. The lawfulness of the three-part test has been affirmed by every federal appellate court to consider the issue.

(j) Despite major advances in athletic opportunities for females since 1972, discrimination still limits athletic opportunities for girls and women at all educational levels today. For example, although women in Division I colleges are 53 percent of the student body, they receive only 41 percent of the opportunities to play sports, 36 percent of the overall athletic operating budgets, and 32 percent of the dollars spent to recruit new athletes.

(k) In California, the percentage of female athletes at California State University (CSU) campuses actually declined from 36 percent in 1977 to 30 percent in 1990. In 1993, California National Organization for Women (Cal NOW) filed suit against the CSU system alleging violations of California’s gender equity in athletics law. Ultimately, CSU and Cal NOW entered into a consent decree focusing on participation, expenditures, and grants-in-aid for women athletes. As a result of the consent decree, women now comprise over 52 percent of CSU athletes, expenditures on women’s sports have increased 315 percent in the last 10 years and grants-in-aid for female athletes have increased 232 percent during the same time period.

(l) Despite major gains for women under California and federal law, inequities in the treatment of men’s and women’s and boys’ and girls’ athletic teams at some educational institutions remain. These inequities include, but are not limited to, all of the following:

(1) Participation rates for women and girls.

(2) Number of sports offered.

(3) Number of levels of teams.

(4) Encouragement by spirit and band groups.

(5) Facilities.

(6) Locker rooms.

(7) Scheduling of games and practice times.

(8) Level of financial support by the district, school, booster club or clubs, and outside sponsors.

(9) Treatment of coaches.

(10) Opportunities to receive coaching and academic tutors.

(11) Travel and per diem allowance.

(12) Medical and training facilities and services.

(13) Housing and dining facilities and services.

(14) Scholarship money.

(15) Publicity.

(m) Educational institutions at all levels are strongly encouraged to take immediate active steps toward full compliance with Title IX and California’s gender equity in athletics laws by reviewing all aspects of their athletic program, including those factors listed in subdivision (l) where appropriate, to ensure that they are offering male and female student athletes equivalent opportunities to play sports and that they are treating male and female athletes fairly. The need to encourage and increase athletic participation by girls and women is especially strong at educational institutions serving inner-city and urban communities. Full compliance with Title IX is nondiscretionary.

(Added by Stats. 2003, Ch. 660, Sec. 2. Effective January 1, 2004.)

66271.7.
  

(a) It is the policy of the state that community college classes and courses, including nonacademic and elective classes and courses, shall be conducted without regard to the sex of the student enrolled in these classes and courses.

(b) No community college district shall prohibit any student from enrolling in any class or course on the basis of the sex of the student.

(c) No community college district shall require students of one sex to enroll in a particular class or course, unless the same class or course is also required of students of the opposite sex.

(d) No school counselor, teacher, instructor, administrator, or aide shall, on the basis of the sex of a student, offer vocational or school program guidance to students of one sex which is different from that offered to students of the opposite sex or, in counseling students, differentiate career, vocational or higher education opportunities on the basis of the sex of the student counseled. Any school personnel acting in a career counseling or course selection capacity to any pupil shall affirmatively explore with the pupil the possibility of careers, or courses leading to careers, that are nontraditional for that pupil’s sex.

(e) Participation in a particular physical education activity or sport, if required of students of one sex, shall be available to students of each sex.

(Amended by Stats. 2003, Ch. 660, Sec. 3. Effective January 1, 2004.)

66271.8.
  

(a) The Legislature finds and declares that female students should be accorded opportunities for participation in public postsecondary educational institution athletic programs equivalent to those accorded male students.

(b) In apportioning public funds, public postsecondary educational institutions shall apportion amounts available for athletics to ensure that equitable amounts will be allocated for all students, except that allowances may be made for differences in the costs of various athletic programs. Notwithstanding any other provision of law, no public funds shall be used in connection with any athletic program conducted under the auspices of a public postsecondary educational institution, or any student organization within the postsecondary educational institution, that does not provide equivalent opportunity to both sexes for participation and use of facilities. The factors considered when determining whether an educational institution has provided equivalent opportunity include, but are not limited to, all of the following:

(1) Whether the selection of sports and levels of competition offered effectively accommodate the athletic interests and abilities of members of both sexes.

(2) The provision of equipment and supplies.

(3) Scheduling of games and practice times.

(4) Selection of the season for a sport.

(5) Location of the games and practices.

(6) Compensation for coaches.

(7) Travel arrangements.

(8) Per diem.

(9) Locker rooms.

(10) Practice and competitive facilities.

(11) Medical services.

(12) Housing facilities.

(13) Dining facilities.

(14) Scholarships.

(15) Publicity.

(c) Whether a postsecondary educational institution has effectively accommodated the athletic interests and abilities of members of both sexes shall be assessed in any one of the following ways:

(1) Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments.

(2) Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion that is demonstrably responsive to the developing interest and abilities of the members of that sex.

(3) Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a history and continuing practice of program expansion as required in paragraph (2), whether the institution can demonstrate that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.

(d) Nothing in this section shall be construed to invalidate any existing consent decree or any other settlement agreement entered into by an educational institution to address gender equity in athletic programs.

(e) Nothing in this section shall be construed to require a public postsecondary educational institution to require competition between male and female students in school-sponsored athletic programs.

(f) If an educational institution must cut its athletic budget, the educational institution shall do so consistently with its legal obligation to comply with both state and federal gender equity laws.

(g) It is the intent of the Legislature that the three-part test articulated in subdivision (c) be interpreted as it has been in the policies and regulations of the Office of Civil Rights in effect on January 1, 2003.

(Amended by Stats. 2004, Ch. 183, Sec. 81. Effective January 1, 2005.)

66271.9.
  

(a) The California Community Colleges and the California State University shall, and a satellite campus of these systems and the University of California are encouraged to, provide reasonable accommodations on their respective campuses for a lactating student to express breast milk, breast-feed an infant child, or address other needs related to breast-feeding. Reasonable accommodations under this section include, but are not limited to, all of the following:

(1) Access to a private and secure room, other than a restroom, to express breast milk or breast-feed an infant child. The room shall have a comfortable place to sit and have a table or shelf to place equipment described in paragraph (3).

(2) Permission to bring onto a college or university campus a breast pump and any other equipment used to express breast milk.

(3) Access to a power source for a breast pump or any other equipment used to express breast milk.

(b) Lactating students on a college or university campus shall be provided a reasonable amount of time to accommodate their need to express breast milk or breast-feed an infant child.

(c) A campus of the California Community Colleges or the California State University may use an existing facility to meet the requirements specified in subdivision (a).

(d) Students shall not incur an academic penalty as a result of their use of the reasonable accommodations specified in this section, and shall be provided the opportunity to make up any work missed due to such use.

(e) Upon the construction of a new campus of the California Community Colleges or the California State University, the replacement, expansion, or renovation costing five million dollars ($5,000,000) or more involving plumbing of an existing building regularly used by students, including a student center, or the construction of a new building costing five million dollars ($5,000,000) or more designed for use by students, the respective educational institution shall provide a sink in addition to the accommodations described in subdivision (a) in a room in the newly constructed campus or building, or in a room in the replaced, expanded, or renovated building. This subdivision only applies to an educational institution if the campus room currently designated for a lactating student to express breast milk or breast-feed an infant child does not have a sink.

(f) This section does not require an existing room designated for a lactating student to express breast milk or breast-feed an infant child to have a sink.

(g) The lactation accommodation shall be available to a student whenever a student is required to be present on campus.

(h) (1) A complaint of noncompliance with the requirements of this section may be filed consistent with Subchapter 5 (commencing with Section 59300) of Chapter 10 of Division 6 of Title 5 of the California Code of Regulations. If the complaint is found to have merit, the campus or appropriate appellate body shall provide a remedy to the affected student.

(2) A complaint of noncompliance with the requirements of this section may be filed consistent with the procedures established by the California State University for complaints by students of discrimination based on disability, gender, or other applicable characteristics, and a student shall be afforded any remedies the student is entitled to pursuant to those procedures.

(i) This section does not infringe on any right to breast-feed in public pursuant to Section 43.3 of the Civil Code or any other law.

(j) The requirements in this section shall be implemented by the California Community Colleges and the California State University, and the University of California is urged to implement the requirements in this section, no later than January 1, 2020.

(Added by Stats. 2018, Ch. 947, Sec. 2. (AB 2785) Effective January 1, 2019.)

66272.
  

This article shall not apply to an educational institution whose primary purpose is the training of individuals for the military services of the United States, or the merchant marine.

(Added by renumbering Section 222 by Stats. 1998, Ch. 914, Sec. 19. Effective January 1, 1999.)

66273.
  

This article shall not apply to the membership practices of a social fraternity or social sorority, exempt from taxation under subdivision (a) of Section 501 of the federal Internal Revenue Code of 1954, whose active membership consists primarily of students in attendance at a postsecondary educational institution.

(Added by Stats. 1998, Ch. 914, Sec. 49. Effective January 1, 1999.)

66276.
  

This article shall not apply to any scholarship or other financial assistance awarded by a postsecondary educational institution to any individual upon the basis of a combination of factors related to the individual’s personal appearance, poise, and talent as an award in any pageant in which participation is limited exclusively to individuals of one sex, provided that the pageant complies with other nondiscrimination provisions of state and federal law.

(Added by renumbering Section 226 by Stats. 1998, Ch. 914, Sec. 22. Effective January 1, 1999.)

66277.
  

In regard to admissions to educational institutions, this article shall apply only to institutions of vocational, professional, or postgraduate education, and to public postsecondary education institutions.

(Added by renumbering Section 227 by Stats. 1998, Ch. 914, Sec. 23. Effective January 1, 1999.)

66278.
  

In regard to admissions to educational institutions, this article shall not apply to any public institution of undergraduate higher education which traditionally and continually from its establishment has had a policy of admitting only students of one sex.

(Added by renumbering Section 228 by Stats. 1998, Ch. 914, Sec. 24. Effective January 1, 1999.)

66281.5.
  

(a) It is the policy of the State of California, pursuant to Section 66251, that all persons, regardless of their sex, should enjoy freedom from discrimination of any kind in the postsecondary educational institution of the state. The purpose of this section is to provide notification of the prohibition against sexual harassment as a form of sexual discrimination and to provide notification of available remedies.

(b) Each postsecondary educational institution in the State of California shall have a written policy on sexual harassment, including information on the complaint process and the timeline for the complaint process, which shall be available on its Internet Web site. It is the intent of the Legislature that each educational institution in this state include this policy in its regular policy statement rather than distribute an additional written document.

(c) The postsecondary educational institution’s written policy on sexual harassment shall include information on where to obtain the specific rules and procedures for reporting charges of sexual harassment and for pursuing available remedies and resources, both on and off campus.

(d) A copy of the postsecondary educational institution’s written policy on sexual harassment shall be displayed in a prominent location in the main administrative building or other area of the campus or schoolsite. “Prominent location” means that location, or those locations, in the main administrative building or other area where notices regarding the institution’s rules, regulations, procedures, and standards of conduct are posted.

(e) A copy of the postsecondary educational institution’s written policy on sexual harassment, as it pertains to students, shall be provided as part of any orientation program conducted for new students at the beginning of each quarter, semester, or summer session, as applicable.

(f) A copy of the postsecondary educational institution’s written policy on sexual harassment shall be provided for each faculty member, all members of the administrative staff, and all members of the support staff at the beginning of the first quarter or semester of the school year, or at the time that there is a new employee hired.

(g) A copy of the postsecondary educational institution’s written policy on sexual harassment shall appear in any publication of the institution that sets forth the comprehensive rules, regulations, procedures, and standards of conduct for the institution.

(Amended by Stats. 2016, Ch. 107, Sec. 1. (AB 2654) Effective January 1, 2017.)

66281.7.
  

(a) It is the policy of the State of California, pursuant to Section 66251, that all persons, regardless of their sex, should enjoy freedom from discrimination of any kind, including, but not limited to, pregnancy discrimination as described in Title IX of the Education Amendments of 1972 (20 U.S.C. Sec. 1681, et seq.), in the postsecondary educational institutions of the state.

(b) Each of the following requirements apply to postsecondary educational institutions in this state:

(1) A postsecondary educational institution, including the faculty, staff, or other employees of the institution, shall not require a graduate student to take a leave of absence, withdraw from the graduate program, or limit his or her graduate studies solely due to pregnancy or pregnancy-related issues.

(2) A postsecondary educational institution, including the faculty, staff, or other employees of the institution, shall reasonably accommodate pregnant graduate students so they may complete their graduate courses of study and research. Reasonable accommodation within the meaning of this subdivision may include, but is not necessarily limited to, allowances for the pregnant student’s health and safety, such as allowing the student to maintain a safe distance from hazardous substances, allowing the student to make up tests and assignments that are missed for pregnancy-related reasons, or allowing the student to take a leave of absence. Reasonable accommodation shall include the excusing of absences that are medically necessary, as required under Title IX.

(3) A graduate student who chooses to take a leave of absence because she is pregnant or has recently given birth shall be allowed a period consistent with the policies of the postsecondary educational institution, or a period of 12 additional months, whichever period is longer, to prepare for and take preliminary and qualifying examinations and an extension of at least 12 months toward normative time to degree while in candidacy for a graduate degree, unless a longer extension is medically necessary.

(4) A graduate student who is not the birth parent and who chooses to take a leave of absence because of the birth of his or her child shall be allowed a period consistent with the policies of the postsecondary educational institution, or a period of one month, whichever period is longer, to prepare for and take preliminary and qualifying examinations, and an extension of at least one month toward normative time to degree while in candidacy for a graduate degree, unless a longer period or extension is medically necessary to care for his or her partner or their child.

(5) An enrolled graduate student in good academic standing who chooses to take a leave of absence because she is pregnant or has recently given birth shall return to her program in good academic standing following a leave period consistent with the policies of the postsecondary educational institution or of up to one academic year, whichever period is longer, subject to the reasonable administrative requirements of the institution, unless there is a medical reason for a longer absence, in which case her standing in the graduate program shall be maintained during that period of absence.

(6) An enrolled graduate student in good academic standing who is not the birth parent and who chooses to take a leave of absence because of the birth of his or her child shall return to his or her program in good academic standing following a leave period consistent with the policies of the postsecondary educational institution, or of up to one month, whichever period is longer, subject to the reasonable administrative requirements of the institution.

(c) Each postsecondary educational institution shall have a written policy for graduate students on pregnancy discrimination and procedures for addressing pregnancy discrimination complaints under Title IX or this section. A copy of this policy shall be made available to faculty, staff, and employees in their required training. This policy shall be made available to all graduate students attending orientation sessions at a postsecondary educational institution.

(Amended by Stats. 2015, Ch. 303, Sec. 114. (AB 731) Effective January 1, 2016.)

EDCEducation Code - EDC4